v. Jenkins et al

Filing 175

ORDER denying as moot 38 Motion for More Definite Statement; denying as moot both 44 and 45 Motions to Dismiss Counts/Claims; adopting Report and Recommendations re 117 Report and Recommendations; granting 13 Motion to Dismiss Party; partie s Art Heady, Joe L Cota and Arizona Pipeline Company are terminated. Possible Dismissal ddl set for 4/21/10. Signed by Chief Judge John M Roll on 03/17/10.(LMF) DOCKET MODIFIED TO INDICATE JOE L COTA TERMINATED AND TO REMOVE INCORRECTLY TERMINATED PARTIES (SW GAS, NPL, ONE CALL, KRASNER, MANNY, SORICH, FENN, MEYERS, CABELLERO, NORMAN & GLENNIE). POSSIBLE DISMISSAL DDL AND MOTION #45 RULING ALSO ADDED TO TEXT ON 3/23/2010 (MHU).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending is a Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants Arizona Pipeline, Jose L. Cota, and Art Heady (collectively, "APL") on August 10, 2009. (Doc. #13.) Defendants Southwest Gas Corp., NPL Construction, Scott A. Krasner, Philip G. Glennie, George Manny, Ron Sorich, Marc Fenn, Bill Meyers, Jose Caballero, Jr., One Call Locators, and Michael Norman have joined in the motion. (Docs. #39, 43, 80, and 101.) Plaintiff filed a response on August 24, 2009. (Docs. #30-32.) APL filed a reply on September 2, 2009. (Doc. #35.) Pursuant to the Rules of Practice in this Court, this case was assigned to Magistrate Judge Guerin. On October 5, 2009, Magistrate Judge Guerin issued her Report and Recommendation ("R&R") (Doc. #117) as to Defendants' motion to dismiss, and, because the parties had not yet consented to the jurisdiction of the Magistrate, review of the R&R v. David Randall Jenkins, Plaintiff, CV 09-382-TUC-JMR ORDER UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Southwest Gas Corp., et al., Defendants.

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was randomly assigned to Chief Judge Roll. Plaintiff filed his objections to the R&R on October 19, 2009. On November 3, 2009, this case was reassigned to Chief Judge Roll pursuant to an election by a party to have the case heard by a district judge under Local Rule 3.8(a). I. Defendants' Motion to Dismiss After an independent review of the record and a de novo review of the portions of the R&R to which Plaintiff has objected, the Magistrate Judge's R&R is adopted in whole. Pursuant to the Magistrate Judge's recommendation, Defendants' motion to dismiss is granted and Plaintiff's complaint is dismissed without prejudice. In filing an amended complaint that corrects the deficiencies in his original complaint, Plaintiff is instructed to heed the warnings given in the R&R with regard to articulating his claims in a short, concise, and understandable manner, avoiding inclusion of futile claims as identified in the R&R, and adhering to the pleading requirements set forth in the Federal Rules of Civil Procedure and the Local Rules. Plaintiff is also advised that he should carefully consider the propriety and necessity of any future filings given the current procedural posture of this case. Accordingly, IT IS ORDERED that the findings and recommendations made by the Magistrate Judge in her October 5, 2009 Report and Recommendation (Doc. #117) are ADOPTED in whole. Specifically, (1) Defendants' Motion to Dismiss (Doc. #13) is GRANTED and Plaintiff's complaint is DISMISSED WITHOUT PREJUDICE. (2) Plaintiff has until April 21, 2010 to file an amended complaint that corrects the -2-

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deficiencies in the original complaint as identified by the R&R and that complies with the Federal Rules of Civil Procedure and the Local Rules. (3) The Motions to Dismiss filed by Defendants Krasner and Glennie (Docs. #44 and 45) are DENIED as moot. (4) The Motion for a More Definite Statement (Doc. #38) filed by Defendants Southwest Gas and NPL Construction is DENIED as moot. IT IS FURTHER ORDERED that Plaintiff heed and comply with the recommendations and warnings contained in the R&R and adopted by this Court. Plaintiff is advised that failure to comply the this order could result in dismissal with prejudice and the imposition of sanctions and/or an award of attorney's fees to Defendants. DATED this 17th day of March, 2010.

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